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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12674
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00155-CEM-GJK-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID AUGUSTA JONES, III,
a.k.a. Da Da
a.k.a. John Larry,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 14, 2020)
Before MARTIN, ROSENBAUM, and ED CARNES, Circuit Judges.
PER CURIAM:
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David Jones, III appeals his 110-month prison sentence for wire fraud. We
denied his counsel’s Anders motion, and we denied the government’s motion to
dismiss or for summary affirmance based on Jones’ appeal waiver and the doctrine
of invited error. We now address the merits of his appeal.
I.
For nearly two years, Jones and several co-conspirators carried out over the
internet an extensive fraud scheme. They posted ads on adult dating websites
posing as women seeking romantic encounters, and they exchanged text messages,
emails, and phone calls with victims who responded to the ads. Then they
contacted the victims from what appeared to be a law enforcement email address.
Posing as agents from the Department of Homeland Security, the conspirators
falsely accused the victims of soliciting a minor by responding to the ads, claimed
that there were warrants out for the victims’ arrest, and demanded that the victims
wire them a “fine” or “fee” to clear the warrants.
Jones was indicted for one count of conspiracy to commit wire fraud and 24
substantive counts of wire fraud. He executed a plea agreement with the
government under Federal Rule of Criminal Procedure 11(c). In the plea
agreement, he agreed to plead guilty to five of the substantive wire fraud charges
against him, and the government agreed to dismiss the remaining charges —
including the conspiracy charge. He and the government agreed to submit a non-
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binding joint recommendation to the court that Jones’ offense level under the
sentencing guidelines should be 24. That recommendation included a base offense
level of 7 under U.S.S.G. § 2B1.1(a)(1), a 12-level enhancement for loss amount
under § 2B1.1(b)(1), a four-level enhancement for victim hardship under
§ 2B1.1(b)(2)(B), a two-level enhancement for posing as a government agent under
§ 2B1.1(b)(9), a two-level enhancement for vulnerable victims under U.S.S.G.
§ 3A1.1(b)(1), and a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. The agreement also contained an appeal waiver.
At the change of plea hearing, the government orally summarized the factual
basis of Jones’ plea agreement. The court asked Jones if he had any objections.
He did. Jones said “[m]ost of that stuff [he] had nothing to do with” and he did not
“believe that all of that is true.” The court ordered a recess so Jones could confer
with his lawyer about the factual proffer. During the recess, Jones, his attorney,
and the government all agreed to several changes to the factual basis of the plea
agreement. When the hearing reconvened Jones said that he had no objections to
the factual basis as modified. He said that he had hesitated to agree with the
proffer because he did not “have personal knowledge [of] what the co-defendants
were doing,” but based on the discovery he had read, he believed “the government
will be able to prove the essential elements.” The court accepted Jones’ plea and
adjudicated him guilty.
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The United States Probation Office prepared a Presentence Investigation
Report (PSR) for Jones. The guidelines calculation in the PSR tracked the
recommendation submitted by the parties in their plea agreement, and it arrived at
the same offense level: 24.
At the sentence hearing, Jones stated that he had not yet gone over the PSR
with his attorney, so the court ordered a recess. During the recess Jones personally
wrote out three pages of objections to the PSR’s guidelines calculation, most of
which boiled down to a claim that he should not be held responsible for the full
scope of the conspiracy because he was not a co-conspirator as a factual matter and
because Count 1, the conspiracy charge, was dropped. He also argued that he did
not actually agree to an offense level of 24 in the plea agreement, but instead only
“acknowledged” it.
When the hearing resumed, Jones’ attorney refused to adopt the written
objections because he believed they were contrary to the plea agreement. The
court initially told Jones that he could not make objections pro se because he was
represented by counsel. But then the court entertained the objections anyway. It
asked Jones’ attorney to summarize the objections and asked the government to
respond to them. After hearing from the parties, the court noted that Jones’
objections contradicted his plea agreement. Because the court was not going to
“renegotiate [Jones’] agreement with the [g]overnment,” it gave him two options:
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he could either move to withdraw his plea, which would be a “pretty steep
mountain to climb,” or he could make the same arguments in asking for a variance.
After another recess, Jones’ attorney told the court that Jones would not withdraw
his plea but instead wanted to seek a variance. The court overruled Jones’
objections after “reviewing the plea agreement that was signed by all of the parties
and considering the fact that [the court] presided over the change of plea
proceedings.”
The court “adopt[ed] the statements and findings of fact as recommended by
probation and determine[d] that” Jones’ offense level was 24, his criminal history
category was V, and his guidelines range was 92 to 115 months in prison. After
hearing some testimony from both sides, the court sentenced Jones to 110 months
in prison. This is Jones’ appeal.1
II.
Jones contends that his sentence is procedurally unreasonable for a number
of reasons. In reviewing the procedural reasonableness of a sentence, we examine
the district court’s findings of fact for clear error and its application of the
1
An argument could be made that Jones’ notice of appeal was untimely. After the
district court entered judgment against him on April 10, 2018, Jones wrote a letter to the court on
May 5 asking for more time to file a pro se notice of appeal. The court granted that request on
May 29 and Jones filed a pro se notice of appeal on June 22. But even if the notice of appeal
was untimely, that does not deprive this Court of jurisdiction. See United States v. Lopez,
562
F.3d 1309, 1313 (11th Cir. 2009). And although the government notes that Jones’ notice of
appeal was potentially late, it does not make an issue out of that fact on appeal.
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sentencing guidelines de novo. United States v. Arguedas,
86 F.3d 1054, 1059
(11th Cir. 1996). 2
A.
Several of Jones’ contentions relate to how the district court imposed various
sentence enhancements, not whether it should have imposed them. We begin with
those.
First, Jones contends that his sentence is procedurally unreasonable because
the district court adopted the statements of fact in the PSR after he objected to
them. Jones’ contention is based on the rule that “[t]he district court may make
findings of fact based on undisputed statements in the [PSR], but may not rely on
those portions to which the defendant objected with specificity and clarity, unless
the Government establishes the disputed facts by a preponderance of the
evidence.” United States v. McCloud,
818 F.3d 591, 595–96 (11th Cir. 2016)
(quotation marks omitted).
But as is true of many rules, there is an exception. Here, the exception is:
“A fact admitted to during a guilty plea cannot later be contested when it appears
in the defendant’s [PSR].” United States v. Martinez,
584 F.3d 1022, 1027 (11th
Cir. 2009). When the defendant objects to such a fact, his objection “is without
2
The government argues that we should limit our review of several of Jones’ contentions
to plain error, but we need not decide that issue because there is no error, plain or otherwise.
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merit and the government need not have introduced any evidence to demonstrate
it.”
Id. “[T]he district court [can] properly consider [the admitted fact] as an
undisputed fact for sentencing purposes” regardless of the defendant’s objection.
Id. (citing United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989)).
The district court did not err by adopting the statements of fact in the PSR
over Jones’ objections. The thrust of his pro se objections was that he was not
actually involved in the larger scheme or conspiracy but instead was running an
identical scam by himself. For that reason, Jones argued, he should not be held
accountable for the scheme’s full scope. But Jones admitted at the change of plea
hearing that he had been involved in the larger scheme. Jones not only agreed to
the written factual basis of the plea agreement, but with the help of his attorney he
also carefully amended another part of it in open court. That document describes
Jones as one of the participants in an extensive fraud scheme. It details that Jones
and two “co-conspirators” began their “scheme to defraud” (singular) in or before
August 2015 and “continued it” (again, singular) through June 2017. The
document, which he agreed to, also describes how in the course of carrying out that
fraud, Jones and his co-conspirators traded victims among themselves. Those facts
establish that Jones was, in fact, part of a larger scheme or conspiracy.3 Because
3
By our count, the factual basis uses the words “conspiracy” and “co-conspirator” a
combined 18 times. Jones did not even attempt to edit out those words at his change of plea
hearing.
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Jones’ objections at sentencing contradicted the facts he admitted in his plea
agreement, the objections lacked merit and the government did not have to
introduce any evidence to support the admitted facts. See
Martinez, 584 F.3d at
1027.
Jones also contends that the district court failed to explain why it overruled
his objections, which he says prevents us from conducting meaningful appellate
review. 4 See United States v. Jones,
933 F.2d 1541, 1546 (11th Cir. 1991) (“To
facilitate our review of sentencing decisions, district courts should make explicit
findings of fact and conclusions of law.”). But the record makes clear that the
court overruled Jones’ objections because they contradicted Jones’ plea agreement,
including the factual basis of that agreement.5 The court told Jones:
I carefully and painstakingly went over [the plea agreement] with you.
We even amended the [factual basis of the] agreement. This doesn’t
happen that often. We amended the agreement in court, which further
supplements the Government’s argument that everyone knew what the
bargain was or what the deal was.
4
Jones also makes a passing reference, in the procedural history section of his opening
brief, to the court’s supposed failure to explain why it imposed the sentence enhancements it did.
But Jones waived this issue by failing to sufficiently brief it. See Sapuppo v. Allstate Floridian
Ins. Co.,
739 F.3d 678, 681–82 (11th Cir. 2014).
5
Although the district court did not expressly rely on the agreed upon factual basis, it
was incorporated into the written plea agreement by reference. Not only that, but in deciding to
enforce the agreement the court mentioned several times that Jones had amended it; the factual
basis was the only part of the agreement that Jones amended.
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The court also told Jones that in light of his plea agreement, he had only two
options if he wanted a lower sentence: withdraw his plea or argue for a variance.
Because the factual admissions that Jones made in his plea agreement supported
the guidelines calculations in the PSR, see Part II.B, below, the court was correct.
See
Martinez, 584 F.3d at 1027. The court concluded by saying:
I’ve considered the matters brought forth by the defense, and I would
note for the record that [Jones’ attorney] has not adopted the objections,
but, nevertheless, in reviewing the plea agreement that was signed by
all of the parties and considering the fact that I presided over the change
of plea proceedings, I’m going to hereby find that the objections stated
to the factual statements and/or guideline calculations are overruled.
That explanation was enough for us to conduct meaningful appellate review of
Jones’ objections.
Finally, Jones contends that the district court failed to independently
calculate his guidelines range. He argues that the court failed to resolve his
objections or make its own calculation of his guidelines range. The district court
has the “ultimate responsibility to ensure that the Guidelines range it considers is
correct.” Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904 (2018). Here the
court met that responsibility. It did not fail to resolve Jones’ objections; it
overruled them because they contradicted his plea agreement. And it did not fail to
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calculate his guidelines range; it adopted the calculations in the PSR after
overruling Jones’ objections to them. There was no error. 6
B.
Jones also contends that the district court clearly erred by imposing
guidelines enhancements for the full $345,000 loss amount, for causing substantial
financial hardship to five or more victims, and for impacting vulnerable victims.7
The court did not clearly err.
First, the loss amount enhancement was not clear error. See U.S.S.G.
§ 2B1.1(b)(1)(G). Even though the conspiracy charge against Jones was
dismissed, he still could be held responsible for the acts of his co-conspirators (and
the resulting losses) if the acts were “within the scope of [a] jointly undertaken
criminal activity,” “in furtherance of that criminal activity,” and “reasonably
foreseeable in connection with that criminal activity.” U.S.S.G.
6
Jones points to a stray comment suggesting that the district court believed it had to
reach an adjusted offense level of 24 because “if the adjusted offense level of 24 changes, then
the [g]overnment is not receiving the benefit of their bargain” under the plea agreement. That’s
a problem, Jones says, because the recommendation in the plea agreement was by its own terms
not binding on the court. But the court made other statements showing that it understood the
recommendation in the plea agreement was non-binding. It noted that “the total adjusted offense
level that was proposed in the plea agreement was 24,” which was “a pretty good estimate
because that’s exactly what probation is recommending at this time [in the PSR]. So they hit the
nail on the head with that estimate.” (Emphases added.) It’s apparent that the court knew the
recommendation in the plea agreement was just an estimate of what Jones’ final guidelines
calculation would be, even if the court could have been clearer about saying so.
7
We assume, without deciding, that Jones’ pro se objections preserved these issues. We
can do so because even if his pro se objections did not preserve the issues and we reviewed for
plain error, we would find no error, plain or otherwise.
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§ 1B1.3(a)(1)(B)(i)–(iii). “A ‘jointly undertaken criminal activity’ is a criminal
plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy.”
Id. cmt. n.3(A). “[A]ctions that
suggest that the defendant was actively involved in a criminal scheme permit the
inference that the defendant agreed ‘to jointly undertake’ that scheme.” United
States v. Whitman,
887 F.3d 1240, 1248 (11th Cir. 2018).
The scheme to defraud that Jones participated in was a jointly undertaken
criminal activity. He was an active participant in the fraud scheme. He personally
received at least 30 payments from victims totaling nearly $22,000 and he traded
victims with his co-conspirators. Each time one of Jones’ co-conspirators
defrauded someone, that was an act within the scope of and in furtherance of the
jointly undertaken criminal activity. And those acts were foreseeable to Jones,
who necessarily knew that his co-conspirators were also defrauding people. The
district court did not commit clear error when it adopted the PSR’s finding that
Jones was responsible for the entire loss amount resulting from the scheme.
Second, the substantial financial hardship enhancement was not clear error.
See U.S.S.G. § 2B1.1(b)(2)(B). Among the factors to consider in determining
whether the offense caused the victim substantial financial hardship is whether the
crime resulted in a victim “suffering substantial loss of a retirement, education, or
other savings or investment fund.”
Id. § 2B1.1 cmt. n.4(F)(iii). Jones admitted
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that at least five victims suffered substantial financial harm as a result of the
scheme, including one victim who cashed in his retirement account and other
victims who used up all of their savings to meet the fraudulent demands. Even if
Jones did not personally defraud all of these victims, the acts of his co-conspirators
were relevant conduct attributable to him for the reasons discussed above. There
was no clear error.
Finally, the vulnerable victims enhancement was not clear error. See
U.S.S.G. § 3A1.1(b)(1). That enhancement applies “to offenses involving an
unusually vulnerable victim in which the defendant knows or should have known
of the victim’s unusual vulnerability.”
Id. § 3A1.1 cmt. n.2. It does not matter
whether the defendant intentionally targeted vulnerable victims, as long as he knew
the victims were vulnerable. United States v. Birge,
830 F.3d 1229, 1233–34 (11th
Cir. 2016). Jones admitted that members of the military were particularly
vulnerable to the fraud scheme because they could be threatened with being
exposed to their commanding officers if they did not pay up. Clearly, Jones knew
about those victims’ unusual vulnerability because he admitted to personally taking
advantage of it. The district court did not clearly err.
AFFIRMED.
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